ICC Prosecutor’s application for arrest warrant against Israeli leaders: The war crime of starvation and its contextual element

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On 20 May 2024, the ICC Prosecutor requested arrest warrants against leaders of both Hamas and Israel. The key crime charged against the Israeli leaders, Benjamin Netanyahu (Prime Minister) and Yoav Gallant (the Minister of Defence), is the war crime of starvation of civilians as a method of warfare. This crime raises numerous issues, including in relation to its intentional element, which has already been discussed elsewhere (here and here). This post focusses instead on the contextual element of that war crime, specifically that it must have been committed ‘in the context of and associated with’ an armed conflict.

The main issue concerns the nature of that armed conflict. The war crime of starvation as a method of warfare is only applicable to the ongoing armed conflict in Gaza if that conflict is qualified as an international armed conflict (IAC). Although that war crime is included in the lists of war crimes under the ICC jurisdiction for both international and non-international armed conflicts (NIAC), the State of Palestine has not (yet) ratified the 2019 amendments that added this crime to the list of war crimes applicable in NIACs. In his application for arrest warrants, the ICC prosecutor asserted that all ‘the war crimes alleged in these applications were committed in the context of an IAC between Israel and Palestine, and a NIAC between Israel and Hamas running in parallel’. All six war crimes charged against Hamas leaders are based on ICC provisions applicable in NIACs. By contrast, among the four war crimes charged against Benjamin Netanyahu and Yoav Gallant, three stem from provisions applicable in both NIACs and IACs. They include the war crimes of intentionally directing attacks against civilians (8(2)(b)(i), or 8(2)(e)(i)), wilfully causing great suffering or cruel treatment (8(2)(a)(iii), or 8(2)(c)(i)) and wilfully killing or murder (8(2)(a)(i), or 8(2)(c)(i)). The fourth one, the war crime of starvation as a method of war, is grounded on a provision only applicable in IACs (8(2)(b)(xxv)).

The ongoing hostilities between Israel and Hamas can surely be qualified as a NIAC, since the twofold requirements for such conflict, intensity of the violence and organization of the parties, are met. Moreover, Hamas is not acting on behalf of the State of Palestine, and it does not seem that a foreign State is exercising ‘overall control’ over it. It is more questionable whether the ongoing armed conflict in Gaza also triggers the application of the law of IAC, which would provide a legal basis for the prosecution of the war crime of starvation as a method of war under Art. 8(2)(b)(xxv) of the Rome Statute. That law of IAC may result from the existence of either an IAC (1) or a situation of belligerent occupation (2). Let us study these two hypotheses separately.

International armed conflict

Applying the law of IAC to the Israeli operations in Gaza presents two main challenges: first, the existence of Palestinian statehood, and second, the practical implementation of the so-called ‘double classification theory.’

The Palestinian statehood. To classify the conflict between Israel and Palestine as international, Palestine would first need to be considered as a State under international law. In this short post, we will not delve into the well-known controversies surrounding the definition of Palestine as a State. It is sufficient to note that, despite occasional contentions that Palestine lacks a sufficiently effective government, convincing arguments exist to qualify Palestine as a full State. In fact, a great number of States and international organizations recognize and treat Palestine as such. This is evidenced by its status as non-member observer State at the United Nations since 2012 (see UN General Assembly Resolution 67/19). Furthermore, a UN General Assembly resolution – adopted by a large majority of 143 States – has recently urged ‘favourable consideration’ for Palestine’s request to upgrade to full-membership status. It could also be – albeit more controversially – argued that, even if Palestine does not qualify for full statehood under international law, similar to its treatment for ICC jurisdiction, Palestine should be regarded as functionally equivalent to a State for the purposes of applying the laws of IAC to the Gaza conflict. Indeed, the notion of ‘Powers’ referred to in common Article 2(3) of the four Geneva Conventions has sometimes been interpreted to include quasi-State entities (or de facto States), such as liberation movements (see here, p. 566). Despite the fact that their statehood remains disputed by several States, these entities could be treated as State-like entities for the purposes of International Humanitarian Law (IHL) mainly because they have sufficient effectiveness to apply and respect the most-developed norms of IHL applicable in IACs (see here, §§ 176-185). Such a functional approach aligns with the spirit of IHL, which often prioritizes effectiveness considerations. This is exemplified by many provisions governing the conduct of hostilities that contain obligations of means and that are thus anchored in considerations of effectiveness, as well as by the functional definition of occupation referred to below.

The ‘double classification theory’. This theory was elaborated by the ICRC and implicitly endorsed by the ICC Prosecutor in his application for arrest warrants, as well as by the ICC judges in several judgments (see here, § 726) and here, at 1184). Under this conception, when a state uses force against an armed group on the territory of another state without that state’s consent, this use of force triggers an IAC between the two states, which overlaps with the NIAC between the intervening state and the armed group. According to this approach, the ongoing hostilities in Gaza would imply the existence of two simultaneous armed conflicts: an IAC between Israel and the State of Palestine, since Israel intervenes on the territory of the State of Palestine without the latter state’s consent, and a NIAC between Hamas and Israel, since the military operations are directed against a non-state armed group.

Even though this ‘double classification theory’ is supported by certain scholars (see here, at 233) it has been criticized by others. One criticism relates to the difficulty in determining which acts fall into one or the other type of armed conflict. Some scholars argue that all the acts of the intervening state, in this case Israel, would be regulated by both the law of IAC and the law of NIAC (see here, at 74). This might lead to absurd consequences, notably that the Hamas soldiers would then be both members of an armed group in relation to the NIAC and civilians in relation to the IAC. The cumulative application of both bodies of law would mean that the Hamas fighters would be protected against any attack. Other scholars instead confine the application of the law of NIAC to certain acts only, such as attacks exclusively impacting members of the armed group (see here, at 815, and here, at 842) provided that no damage is caused to anyone or anything else. This is also untenable in practice, as it is hardly foreseeable that an attack will only impact members of the armed group. These absurd or untenable consequences have led some authors to reject the double classification theory and to retain only the qualification of NIAC (see here, at 434-452).    

The main problem with the ‘double classification theory’ is that it unrebuttably presumes from the lack of consent of a State to military operations conducted by another State on its territory the existence of a hostile intent from the latter State against the former one. In other words, the absence of consent from the Palestinian authority to the Israeli military operation would necessarily imply that Israel is animated by a hostile intent against the State of Palestine with respect to any of its conduct. Yet, that hostile intent should be objectivized through material acts. For example, it is clear that such intent does not exist when the foreign military operations only consist of targeting the armed group, such as Hamas, and the military operations are confined to the territory controlled by that armed group. However, the issue is much more unclear when civilians are impacted in such a manner as the Gaza population is today affected by the Israeli impediments to the delivery of humanitarian assistance. This extends far beyond the scope of military operations against Hamas in the strict sense. In such a case, the presumption of the existence of a hostile intent against Palestine due to its lack of consent can hardly be rebutted, and the law of IAC could be considered applicable to the Israeli conduct responsible for the starvation of the civilian population.     

Occupation

In the case of Israel’s occupation of Gaza, the nexus requirement between starvation and an IAC would be automatically fulfilled. Indeed, occupation is traditionally viewed as an extension of an IAC. Despite the withdrawal of Israeli troops from Gaza in 2005 and the ongoing intense hostilities, the existence of such a situation of occupation could be argued on the basis of three alternative views. 

The first view, supported by certain scholars, is grounded on a restrictive approach to the end of occupation. According to this conception, the occupation of Gaza that began in 1967 did not end after the 7 October attacks, despite violent clashes between Israel and Hamas in that territory. This perspective is based on the assumption, notably shared by the UN and the ICRC, that Gaza remained an occupied territory – or, at least, that Israel was required to fulfil certain obligations as an occupying power in Gaza –  after the 2005 Disengagement Plan. This is due to the control Israel retained over the Gaza Strip’s land and sea ‘borders’ as well as its airspace. Since such remote control did not cease after the 7 October attacks, it has been argued that there was no reason to consider that the occupation has ended. This is notably evidenced by Israel’s control over the delivery of essential supplies to the Gazan population, such as water, gas, fuel and electricity.

The second view adopts a broad approach to both the end and beginning of occupation. Under that view, the occupation might have ended with the withdrawal of the Israeli armed forces from Gaza in 2005. However, the law of occupation would apply again immediately after Israel re-entered Gaza. This aligns with the position held by some scholars that the rules of the law of occupation become applicable as soon as the invading forces come into contact with the foreign civilian population, provided that the invading state exercises sufficient control over individuals to be able to comply with those rules. The ground invasion of Gaza began with the Israeli offensive carried out on October 27 and is still ongoing. Additionally, the IHL rules on humanitarian relief applicable in situations of occupation are flexible enough to accommodate any degree of control exercised by the invading state over individuals. These rules consist of prohibitions or obligations of means, which must be complied with ‘[t]o the fullest extent of the means available to’.  

The third view is founded on a broad conception of the end of occupation and a restrictive approach to the beginning of occupation. The latter conception, favoured by most courts, states, scholars as well as the ICRC, asserts that occupation begins only when the invading forces exercise effective territorial control over the foreign territory. Accordingly, under that third view, the occupation might have ended after 2005, and resumed only when and where the Israeli armed forces exercised that effective territorial control. This involves the physical presence of the Israeli military forces, the lack of consent from the State of Palestine, and the ability of the Israeli forces to exercise authority over the territory in lieu of the local authorities, namely Hamas. Even under such a restrictive approach to the beginning of occupation, it may be argued that a situation of occupation at least existed in some parts of Gaza, especially in Northern Gaza where the civilian population already suffers from famine, for a determined period of time, at least between January and May 2024. Hamas was, indeed, complexly dismantled in the north of Gaza around the end of December 2023, while hostilities resumed in that region in May 2024. Although that period lasted a few months, Israel manifestly impeded the delivery of humanitarian assistance to the Gazan population, which caused the current and likely future famine.

The first view does not raise the issue of the statehood of Palestine. It does not require that Gaza must be part of a foreign State, namely the State of Palestine, since, as stated by the International Court of Justice, the Israeli occupation that began in 1967 resulted from an IAC, between Israel on one hand and Jordan and Egypt on the other hand. The issue of statehood of Palestine is not relevant either with respect to the other two views, even if the claimed renewed occupation of Gaza by Israel can no longer be considered the result of an IAC with Jordan and Egypt. Indeed, it is widely acknowledged that the unsettled sovereign status of a territory, namely that of Palestine, is irrelevant to the application of the law of occupation. As supported in legal scholarship and by the ICRC, ‘it is sufficient that the State whose armed forces have been established effective control over the territory was not itself the rightful sovereign of [that territory]’.

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Therefore, even if the State of Palestine is not considered a State under international law, or the ‘double classification theory’ is dismissed, and certain approaches to the notion of occupation are not followed, the alleged war crime of starvation allegedly committed by Israeli leaders could still be argued to have occurred ‘in the context of and associated with an IAC’, thereby falling under the ICC jurisdiction to prosecute such a crime.       

The editorial team notes that Professor Marko Milanovic was not involved in reviewing or editing this post.         

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Adil Haque says

June 4, 2024

Hi, thanks for the excellent post. I just want to point out that your concerns about "absurd consequences" flowing from the dual classification approach would arise in any situation of multiple armed conflicts waged by the same actor on the same territory.

Suppose State A is engaged in an internal NIAC with Group 1 and a separate internal NIAC with Group 2. Members of Group 1 would then be both members of an armed group in relation to the A-1 NIAC and protected civilians in relation to the A-2 NIAC. And vice versa for members of Group 2.

Similarly, suppose State A and State B independently invade State C (perhaps they both covet State C's natural resources). State A's soldiers would be both combatants relative to the A-C IAC and civilians relative to the B-C IAC. And vice versa for State B's soldiers.

Since the problem is not unique to the dual classification approach, it should not be an objection to it. Rather, this is a general problem that IHL must solve in a range of contexts.

My own view is that we should interpret and apply IHL such that a party to multiple armed conflicts may consider a person or object that is a lawful target relative to one conflict as not protected relative to other armed conflicts. It would follow that members of the Al-Qassam Brigades, or PIJ, would not enjoy civilian protection relative to the Israel-Palestine IAC.

Hope that all makes sense. In case it's useful, I wrote a bit more about this in an old conference paper that I never published:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3046791

All the best,

Adil

Raphaël van Steenberghe says

June 5, 2024

Dear Adil,
Many thanks for your insightful comments and your thoughtful paper that we have read carefully. We would like to make the following observations:
Firstly, we may agree with you that, as you seem to suggest it, certain key notions, like the notion of direct participation of civilians in hostilities, could apply irrespective of the nature of the armed conflict. You appear to argue this when you write in your paper that ‘[n]otably, the fact that Protocol I refers to ‘a conflict’ and to ‘the conflict’, seemingly interchangeably, suggests that this approach is not precluded by the ordinary meaning of the relevant terms in their context’. However, assessing the lawfulness of an attack against a person ‘acting on behalf of any party to any armed conflict’ cannot be dealt with only by resorting to this notion. Other notions play a key role in that respect, especially membership to armed forces – this notion is also important in order to determine who is part of the civilian population and entitled to a series of ensuing protections, such as the protection against terrorizing acts. Yet, the conditions of membership to armed forces are clearly different according to the nature of the armed conflict. Then, when you argue that a person may lawfully be targeted because he/she is a lawful target under one conflict (the NIAC one), even if he/she is protected in relation to the other conflict (the IAC one), you seem to give prevalence to the law of NIAC over the law of IAC. This may suggest that you resort to the law of NIAC as the lex specialis in order to interpret similar concepts of the law of IAC (as it is actually done in practice with respect to the relationships between IHL and IHRL, when the former is used to interpret the latter). This is apparent from your assertion that, although the law of IAC ‘provides the rules governing attacks by the intervening state against the armed group […] [i]mportantly, key elements of these rules, such as ‘hostilities’, ‘military action’, ‘military advantage’, and so on, will be interpreted to reflect the fact that the intervening state is also a party to a non-international armed conflict with the armed group’. Moreover, it seems that, in your view, since the law of IAC remains as the background for the regulation (as IHRL actually does in relation to IHL), excessive collateral damage in relation to the direct and concrete military advantage anticipated from the attack may give rise to a war crime under the Rome Statute (although this war crime is only provided for in case of IACs). Yet, why the law of NIAC would be the lex specialis? It is well-known that that this mechanism does not provide any guidance on which rule must be qualified as the lex specialis.
Secondly, how would you deal with a conflict between a norm applicable in IAC and norm applicable in NIAC with a more protective scope? Take the prohibition on targeting, destroying, removing or rendering useless objects indispensable to the survival of the civilian population. It may be argued that the exceptions applicable in IACs (Art. 54, 3), a) and b) API) are not applicable in NIACs, based on either treaty or customary law. Which law would you apply to the intervening state and how would you articulate the two bodies of law in such case?
Thirdly, in order to support your point of view, you argue that the result would otherwise be absurd, since a person could then be both a protected civilian (under the law of IAC) and a targetable member of armed forces (under the law of NIAC) at the same time. Yet, this problem comes from the dual qualification theory and there are other ways to overcome it, namely by rejecting this theory and, therefore, the existence of an overlapping IAC.
Fourthly, as you mention it in your paper, there is serious problem with the dual qualification theory: the law of IAC could apply before the beginning of the NIAC (as long as the intensity threshold is not met) and could cease to apply only after the end of the NIAC (if you agree with the traditional approach to the end of NIACs). Yet, the law of IAC would be the only applicable IHL body under the dual qualification theory. The law of NIAC could no longer be mobilized to render any attack against members of the armed group lawful. Any attack against members of the armed group would then breach IHL and would amount to a war crime, which is not really reasonable.
Many thanks in advance for your responses!

Adil Haque says

June 6, 2024

Hi Raphaël (and Jérôme),

Thanks for all of these questions! I will try to answer briefly.

1. I don’t think the LoNIAC is lex specialis relative to the LoIAC. That would not address the other scenarios I lay out, involving parallel IACs and parallel NIACs. Rather, we should apply IHL to all overlapping armed conflicts in light of IHL's object and purpose.

2. If a person or object enjoys civilian protection in relation to both armed conflicts, then they should benefit from the most protective rules that apply to either armed conflict. If a person or object loses civilian protection in relation to one armed conflict, then they should not benefit from the rules designed to protect civilians and civilian objects that apply to the other armed conflict.

3. We cannot reject the dual classification approach, though we can disagree over when it applies. Let me explain what I mean. Suppose State A is engaged in a NIAC with non-state armed group G on the territory of State B without the latter’s consent. Now suppose State B decides this intervention is intolerable and send its armed forces against the armed forces of State A. We would all agree that we now have two parallel armed conflicts: the A-B IAC and the A-G NIAC. All the same questions you raise would arise in this situation, and require answers. We shouldn’t let the difficulty of these questions dictate our view of what triggers an IAC in the first place.

4. I think that "first strikes” by or against an armed group should trigger a NIAC. I wrote about this many years ago and was encouraged that the ICRC recently moved in this direction. But the solution should not be to deny that a first strike on the territory of a non-consenting state does not trigger an IAC. That leads to even more perverse consequences, which I will leave it to you to imagine.

Hope this makes sense.

All the best,

Adil

Nicolas Boeglin says

June 9, 2024

Dear Professors de Hemptinne and Van Steenberghe

Many thanks for your post.

May I take this opportunity to refer you to ICC preliminar Chamber ´s decision of February 2021, in which, after hearing some of the legal arguments you mentionned in your post, we can read in the final conclusions that:

"FINDS that Palestine is a State Party to the Statute;

FINDS, by majority, (...), that, as a consequence, Palestine qualifies as ‘[t]he State on the territory of which the conduct in question occurred’ for the purposes of article 12(2)(a) of the Statute; and

FINDS, by majority, (...), that the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem."

In my view, there is no doubt for ICC Pre Trial Chamber in 2021 that Gaza is an occupied territory.

Since that decision, some of the doubts you kindly share with us in this post are, in my view, evacuated concerning the legal status of Palestine and Gaza from international law perspective, particularly from international criminal law and IHL.

Yours sincerely

Nicolas Boeglin

Note: i refer you to a modest note on that decision (in French, sorry), entitled

"Palestine / Cour Pénale Internationale (CPI) : à propos de la décision de la Chambre préliminaire du 5 février 2021"

available at:

https://derechointernacionalcr.blogspot.com/2021/02/palestine-cour-penale-internationale.html

Nicolas Boeglin says

June 14, 2024

Dear Professors de Hemptinne and Van Steenberghe

In addition to what has been stated by Pre Trial Chamber in Feb. 2021, may I add to my previous comment what we read in a recent report issued by UN Commission of Inquiry of UNHRC a few days ago (Document A/HRC/56/26 available on the web) in its very first paragraph:

"It also summarises factual and legal findings on Israeli military operations and attacks in the OPT, principally the Gaza Strip, focusing on the period from 7 October to 31 December 2023, examining the imposition of a total siege, evacuation and displacement of civilians and attacks on residential buildings and refugee camps".

It seems to me, as indicated in my previous comment when referring to ICC decision of 2021, that for many UN organs, Gaza Strip is, legally speaking, an occupied territory.

Yours sincerely

Nicolas Boeglin

Note: I take the opportunity so share a note on recent Palestine´s recognition of ICJ jurisdiction (In French, sorry):

Gaza / Israël : à propos de la déclaration de la Palestine reconnaissant la compétence de la CIJ et demandant à intervenir en l'affaire Afrique du Sud contre Israël

https://derechointernacionalcr.blogspot.com/2024/06/gaza-israel-la-palestine-declare.html